State v. Huerta

• Decision Date: 10 February 2010
• Docket Number: No. 2 CA-CR 2009-0078.,2 CA-CR 2009-0078.
• Citation: 224 P.3d 240
• Parties: The STATE of Arizona, Appellant, v. Alexander Joel HUERTA, Appellee.
• Court: Arizona Court of Appeals

224 P.3d 240

The STATE of Arizona, Appellant, v. Alexander Joel HUERTA, Appellee.

No. 2 CA-CR 2009-0078.

Court of Appeals of Arizona, Division 2, Department A.

February 10, 2010.

Barbara LaWall, Pima County Attorney By Jacob R. Lines and Amy S. Ruskin, Tucson, Attorneys for Appellant.

David Alan Darby, Tucson, Attorney for Appellee.

OPINION

ESPINOSA, Presiding Judge.

¶ 1 After the trial court granted Alexander Huerta's motion to suppress all evidence related to a sheriff's deputy's discovery of cocaine in an unclaimed duffle bag, the state dismissed all pending charges against Huerta and now appeals the trial court's suppression ruling. Finding no illegal search occurred, we reverse.

Factual and Procedural History

¶ 2 We review the facts in the light most favorable to upholding a trial court's ruling on a motion to suppress. State v. Teagle, 217 Ariz. 17, ¶ 2, 170 P.3d 266, 269 (App.2007). The following facts are undisputed. In April 2008, Huerta and his son were outside their home loading items into Huerta's pickup truck when two men in a sport-utility vehicle (SUV) approached and began shouting and firing guns at them. Huerta produced his own weapon, returned fire, and the SUV sped away. Not seeing his son and fearing he had been kidnapped, Huerta chased the SUV in his truck, spilling items from the bed of the truck onto the roadway.

¶ 3 A Pima County sheriff's deputy responding to reports of gunfire arrived at a location near Huerta's home and found people attempting to clear the road. He directed them to stop and then picked up several items lying in the street. After the deputy had moved the items to the sidewalk, Huerta returned to the scene and described what had happened. He appeared nervous and initially declined to identify any of the property, indicating he was too worried about his son to think about it. After learning his son was at a neighbor's house, Huerta was again asked about the property and he claimed everything except a duffle bag. When Huerta was specifically asked about the bag, he neither admitted nor denied owning it.¹ The deputy subsequently unzipped the bag and discovered several wrapped "blocks" of cocaine. Huerta was arrested and officers obtained a search warrant for his home and vehicle. Following a pretrial hearing, the trial court granted Huerta's motion to suppress all evidence acquired as a result of the deputy's opening the duffle bag and the state voluntarily dismissed the charges to seek appellate review of that ruling. We have jurisdiction over the state's appeal pursuant to A.R.S. § 13-4032(6).

Discussion

¶ 4 The state contends the trial court erred in suppressing the evidence obtained as a result of the search of the duffle bag, arguing it had been abandoned and Huerta retained no privacy interest in its contents. Neither the state nor Huerta has cited any controlling authority relating to the specific circumstances presented here, and we have found none. Accordingly, we find this a matter of first impression in Arizona. In reviewing a trial court's ruling on a motion to suppress evidence, we evaluate discretionary issues for an abuse of discretion but review legal and constitutional issues de novo. State v. Allen, 216 Ariz. 320, ¶ 11, 166 P.3d 111, 114 (App.2007). Whether a defendant has abandoned property is a factual determination, see State v. Rogers, 186 Ariz. 508, 511, 924 P.2d 1027, 1030 (1996), that we review for clear and manifest error, see State v. Dean, 206 Ariz. 158, ¶ 9, 76 P.3d 429, 432 (2003). Whether a particular expectation of privacy is recognized under constitutional law is reviewed de novo. Allen 216 Ariz. 320 ¶ 15, 166 P.3d at 115.

¶ 5 Both the United States and Arizona Constitutions forbid unreasonable searches and seizures, U.S. Const. amends. IV and XIV; Ariz. Const. art. II, § 8, and warrantless searches are "per se unreasonable," Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); see also State v. DeWitt, 184 Ariz. 464, 468, 910 P.2d 9, 13 (1996). A person retains no privacy interest, however, in abandoned property and may not invoke the exclusionary rule for evidence uncovered as the result of its search. See State v. Huffman, 169 Ariz. 465, 466-67, 820 P.2d 329, 330-31 (App.1991). A court will find that property has been abandoned only when "the person prejudiced by the search had voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.'" State v. Walker, 119 Ariz. 121, 126, 579 P.2d 1091, 1096 (1978), quoting United States v. Colbert, 474 F.2d 174, 176 (5th Cir.1973). An intent to abandon property "is determined by objective factors, not the defendant's subjective intent.'" People v. Pereira, 150 Cal.App.4th 1106, 58 Cal. Rptr.3d 847, 852 (2007), quoting People v. Daggs, 133 Cal.App.4th 361, 34 Cal.Rptr.3d 649, 652 (2005). And "[t]he appropriate test is whether defendant's words or actions would cause a reasonable person in the searching officer's position to believe that the property was abandoned." Id. at 852-53.

¶ 6 The state argues that cases from other jurisdictions on which the trial court relied are readily distinguishable from this one and urges us to reverse its ruling. In response, Huerta highlights aspects of these cases that he contends support the court's finding. Although the authorities he cites share some factual elements with the present case, we agree with the state that they are distinguishable and that the distinctions are important.

¶ 7 Huerta relies on Commonwealth v. Holloway, 9 Va.App. 11, 384 S.E.2d 99, 103-04 (1989), in which the Virginia Court of Appeals held a defendant's failure to claim luggage "need not be interpreted as abandonment." There, drug enforcement agents boarded a train, told the defendant's companion they were investigating illegal drugs on the train, and asked the defendant and his companion if they owned two particular pieces of luggage, which were searched and found to contain drugs after neither the defendant nor any other passenger claimed them. Id. at 101. The state argued the search was proper because the defendant had abandoned the luggage by not claiming it when asked. Id. In upholding the trial court's suppression ruling, the court noted the luggage had been in a proper place for storage on the train, and the owner could have chosen not to answer or have been unavailable when the agents were questioning other passengers. Id. at 103-04.

¶ 8 Huerta argues that, as in Holloway, a failure to respond does not establish abandonment. As the state points out, however, the court expressly noted that the defendant was aware of the drug investigation and could exercise his right to remain silent rather than claiming the luggage and incriminating himself. Holloway, 384 S.E.2d at 104. But see United States v. Trimble, 986 F.2d 394, 399 (10th Cir.1993) (police investigation or pursuit does not render abandonment involuntary). The Holloway court also emphasized that the luggage was properly stored on the train. 384 S.E.2d at 104. Accordingly, the owner reasonably could expect the luggage to remain on the train if he or she did not claim it while the agents were onboard seeking information.

¶ 9 Here, the deputy responded to a report of shots fired and had no reason to suspect the duffle bag contained drugs. Therefore, claiming the bag, whose contents law enforcement had neither suspicion about nor the right to inspect, would not have incriminated Huerta at all. Cf. Holloway, 384 S.E.2d at 100, 104 (officers boarded train specifically to investigate defendant's possible drug possession and announced intention to seek drugs). Additionally, unlike the bag in Holloway, this duffle bag was not stored in an appropriate place, but was found lying in a roadway. Moreover, Huerta claimed all the other items except the duffle bag. Accordingly, we find Holloway inapposite.

¶ 10 In State v. Joyner, 66 Haw. 543, 669 P.2d 152 (1983), also cited by Huerta, the defendant was found not to have abandoned a bag by remaining silent when police questioned him. There, officers executing a search warrant for evidence of gambling at a bathhouse smelled marijuana in the sauna; they arrested another man, who had marijuana on his person, and then asked the others present who owned a bag lying near the defendant. Id. at 153. Although the defendant did not claim it, the trial court found he had exhibited "indicia of ownership" by placing the bag, at most, two feet from himself in the sauna. Id. at 154. The Hawaii Supreme Court upheld the suppression of evidence in the bag, expressly refusing to equate "passive failure to claim potentially incriminating evidence" with abandonment of property. Id. at 153.

¶ 11 Huerta relies on Joyner for the proposition that passive silence is not tantamount to abandonment. But, his conduct cannot be deemed "passive" when he had affirmatively claimed each and every other item that had been found in the street. Moreover, as we noted in our discussion of Holloway, Huerta would not have incriminated himself by claiming the duffle bag because the deputy had no reason to suspect it contained contraband, unlike the officers in both Holloway and Joyner. Other courts have held that a person must claim an item when given the opportunity to do so to avoid a finding of abandonment. See United States v. Hernandez, 7 F.3d 944, 947 (10th Cir.1993) (defendant abandoned backpack by failing to claim it after border patrol agent on bus repeatedly asked who owned it); People v. Henry, 477 Mich. 1123, 730 N.W.2d 248, 248 (2007) (defendant's failure to object or assert ownership when police looked inside bag reflected intent to disavow connection with bag); see also State v. Farinich, 179 N.J.Super. 1, 430 A.2d 233, 236 (App.Div.1981) (failure to deny ownership not construed as claim of privacy interest for...